Thoughts from the interface of science, religion, law and culture

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.

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Jurisdiction and the DOMA Case

Lyle Denniston of SCOTUSBlog explains some of what confused me about the Supreme Court’s order in accepting the cert petition in the DOMA case from the 2nd Circuit. Turns out there are two cert petitions filed in the same case, one from the Obama administration and one from the plaintiff:

The merits argument in the DOMA case — and that, too, was something the Court agreed to consider — is whether Section 3 of that statute violates the right to legal equality for same-sex couples who are legally married under state laws where they live. If the Court were to rule that the Court lacks jurisdiction, after finding that the Administration is not a proper one to appeal a ruling that it had won, that presumably would end that case. If it were to rule that the House GOP could not be in the case, there would be no defender of DOMA.

But there is still a private individual involved in that case — Mrs. Edith Windsor of New York City, who had to pay a federal tax on the estate she inherited from her same-sex spouse after the spouse’s death, because DOMA allows that only for the surviving spouse of a man-woman marriage. Incidentally, there is a dispute about even Mrs. Windsor’s own “standing,” but the Court did not mention that in its order in that case. Mrs.Windsor has her own petition at the Court, but it did not figure directly in the Friday orders.

So here’s what really appears to be going on. The Obama administration actually filed this cert petition before the 2nd Circuit ruled in the case, but they now agree with that ruling. So the question is, can they appeal a ruling that they won? The answer to that likely seems to be no. But I doubt that any of the parties to the case are going to argue that; the plaintiff wants this case to be heard as quickly as possible because Windsor is 80 years old. BLAG wants them to hear it because they lost in the 2nd Circuit. So no one in the case is likely to argue against jurisdiction here and the court, if it chooses to punt the case on that basis, will have to supply its own reasoning.

So if the court does punt it on jurisdiction, that would leave the 2nd Circuit ruling in place and that means DOMA would still be considered unconstitutional and unenforceable in those states (and in the 1st, 3rd and 9th circuits as well, unless they accept and overturn those rulings). But it’s still being enforced in those circuits that have not ruled it unconstitutional, which creates an equal protection problem. And there are 8 other cert petitions out there yet involving DOMA, so there are many other cases they could take on this. Which makes me wonder why they took this one instead of one of the others.

The question still remains on the issue of BLAG’s standing to act as defendants. Since the Obama administration won’t defend the law anymore, if the court says that BLAG has no standing to act as defendant, that means no one can do so. And that means, in essence, that the law can’t be challenged — even though the executive branch agrees that it’s unconstitutional. And would ruling that BLAG doesn’t have standing leave the lower court rulings in place or void them all? Either way, it’s a serious problem.

I still suspect that what is really going on here is that they’re trying to give themselves an out so they don’t have to decide the case on the merits. Another possibility is that the court will decide this case to set the standard of review and then remands all the other cases back to be decided in light of that standard. And if they do that, the ramifications are huge, not just for these cases but for any law that affects the LGBT community.

If the court decides that intermediate scrutiny has to be applied in such cases, it will likely unleash a whole bunch of challenges to various laws because the standard of review will be so much stronger than before. And whether that happens depends entirely on Justice Kennedy. This is going to be incredibly interesting to watch.

Comments

Under what theory would BLAG not have standing? They are representing congress, who passed the law in the first place and I would think would therefore have at least as much interest in its enforcement as the exec.

It is the Executive [branch] that must, under the constitution, “take care” that the laws be enforced. Not only does congress not enforce the laws it passes and the President signs, but it is forbidden in some explicit instances (Bills of Attainder, Ex Post Facto) from doing so. About all Congress can really do is send out the Sergeant-of-Arms to “arrest” members that don’t show up to vote, withhold funds for certain explicit areas of law-enforcement, and/or impeach and convict the Executive for failure to “take care” to enforce the laws.

Whether a federal court has jurisdiction over a dispute is not something a party can agree to. (Personal jurisdiction is a different story.) If a federal court questions whether it has jurisdiction of the subject matter, the plaintiff must demonstrate that the court does possess jurisdiction.

So, to say that no one is likely to argue against jurisdiction misses the point. If the parties want to be in federal court, someone needs to demonstrate why the court has jurisdiction over the dispute.

That makes sense except that the case is already in federal court, and that the Supreme Court could have looked at this and said “no, not our jurisdiction” and refused to grant cert.

I am starting to suspect that they were looking for an excuse to rule that they don’t have jurisdiction, by taking the Windsor case rather than Massachusetts v. United States, which is a lawsuit by a state against the federal government (so clearly federal jurisdiction) objecting to a federal law on constitutional grounds. As distinct from Windsor, which is a private citizen suing on (different) constitutional grounds. (As I understand it, Windsor is 14th Amendment equal protection; Massachusetts v. US is tenth amendment; and the Prop 8 case is equal protection but based (partly?) on the California state constitution’s guarantee of equal protection.)

The thing is, I can’t figure out the motivation behind that, if so. Why would the Supreme Court want to make a ruling that it lacks jurisdiction in a set of cases, when it could just continue to deny cert on things it doesn’t want to look at?

A cert denial doesn’t say anything, except that there weren’t at least four Justices who wanted to hear the case right now. If the Court wants to say something about jurisdiction or standing, it must grant certiorari and hand down an opinion. (There is another way the Court can “say” something, though it may be a bit cryptic – the grant, vacate, and remand (GVR), but that isn’t at issue here.)

I very much doubt that the Court granted cert because it is looking for a reason to say it lacks jurisdiction. I suspect there are at least four Justices who want to reach the merits, and who think they can convince Justice Kennedy to climb aboard. The jurisdictional issues are a “safety valve” that the Court might look to if a solid majority (or plurality) cannot be forged.

As I think more and more about this case, I think that the issue of BLAG’s standing may be more significant than whether the Executive had standing. The latter question is more settled, even in the odd case – like this one – where the Executive refuses to defend the law on constitutional grounds. By contrast, the issue of a defendant-intervenor’s standing (see my comment to Ed’s post about this case yesterday for more), both at trial and on appeal, is much less clear. The Court has addressed defendant standing before (see, e.g., ASARCO, Inc. v. Kadish, and cases cited there), but the law is much less developed than as regards plaintiff standing.

If the Court ends up making a significant ruling on defendant standing, it could leave the DOMA cases in a rather messy state. If BLAG lacks standing to defend DOMA, then (as Ed pointed out yesterday) the likely outcome is that no one can defend DOMA. Of course, the Court might use this case as a vehicle to clarify defendant standing principles, and then conclude that BLAG had standing in this case.

Oops! I’m using the word “watch” loosely there. Supreme Court arguments aren’t televised or videotaped. By “watch” I mean “follow.” A transcript of the argument (probably last week in March) will be available same day, and an audio recording of the argument will be released either at the end of argument week or (maybe) same day.

Not specifically on the topic of jurisdiction or standing, but as a practical matter, won’t SCOTUS do whatever Kenedy says? Don’t we already have a pretty good idea about what the other eight votes will be? (Sure, there could be a surprise; bit it’s not something I’d bet on.)

For a while, I’ve had the idea that what lawyers mostly do is craft arguments given conclusions. But rationalization is the default behavior for you, me, and everybody. Why should we have any particular respect for that? What am I missing?

About all Congress can really do is send out the Sergeant-of-Arms to “arrest” members that don’t show up to vote, withhold funds for certain explicit areas of law-enforcement, and/or impeach and convict the Executive for failure to “take care” to enforce the laws.

Wait… if Congress can use impeachment as a tool in response to the executive failing to uphold the laws it passes, why isn’t Congress utilizing the impeachment process to force the executive to enforce DOMA in the courts, instead of putting BLAG together?

seems like the rethuglicans would have jumped at the chance to try and impeach Obama?

Because the Senate would immediately vote for acquittal, I imagine. Same reason the blowhards in the House don’t do much of anything. For once, the Senate’s obstinate behavior is more or less justified.

Wait… if Congress can use impeachment as a tool in response to the executive failing to uphold the laws it passes, why isn’t Congress utilizing the impeachment process to force the executive to enforce DOMA in the courts, instead of putting BLAG together?

I think you’re confusing enforce and defend. They are enforcing the law, but they’re no longer defending its constitutionality in court. And since the Republicans don’t control the Senate, no such vote would help them much — and it would backfire on them politically as well.